Atheists Denounce Trump Administration’s New “Religious Freedom” Office and Dangerous New Rules Promoting Discrimination

JANUARY 18, 2018

Washington, DC—As part of its continued assault on LGBTQ people and women under the guise of “religious freedom,” the Trump administration has announced the creation of a new “Conscience and Religious Freedom Division” within the Department of Health and Human Services’ Office for Civil Rights. The new division would be charged with shielding medical professionals who refuse to treat patients because of religious objections.

In addition, HHS is expected to announce a proposed rule change that would allow healthcare providers to discriminate against patients and deny treatment on the basis of religious objections.

The rule change would roll back Obama-era regulations that provided non-discrimination protections for individuals receiving healthcare services. Prior to these regulations, healthcare providers were able to use “conscience” exceptions to deny access to birth control, treatment for HIV and AIDS, and end-of-life care; discriminate against transgender patients and even deny emergency ambulance services to a woman seeking an abortion.

“The Trump administration seems to define religious freedom as the ability to freely discriminate against LGBTQ people and women,” said Alison Gill, legal and policy director for American Atheists. “I have no doubt that changing this rule will cost people their lives. Medical evidence, not religious dogma, should be deciding medical care.”

So-called “conscience” protections are the latest tactic being used by the Religious Right to undermine civil rights laws and equal protection. In a proclamation for National Religious Freedom Day, the Trump administration said that Americans could pick and choose which laws to follow on the basis of their religious beliefs, a sentiment echoed by Roger Severino, the director of HHS’ Office for Civil Rights, in a statement announcing the proposed changes.

“These changes fly in the face of established law and court precedent. This new office and the proposed rule don’t protect religious freedom. They merely elevate one particular set of religious views—namely that LGBTQ people are sinful and that abortion is immoral—above all others, and weaponize it against vulnerable people,” added Gill. “The Office for Civil Rights should try focusing on protecting civil rights instead of wasting time and money to undermine them.”

Severino, the chief architect of the proposed HHS rule, has previously worked to expand religious exemptions and undermine basic civil rights protections for LGBTQ people, particularly transgender people.

35 Percent of DOI employees harassed: Zero tolerance promised: Four leaders removed

Interior Continues Steps Toward Department-Wide Culture Change with Release of Work Environment Survey Results

First survey of its scope shows 35 Percent of DOI employees harassed, discriminated against

Date: December 14, 2017

WASHINGTON – Today, the U.S. Department of the Interior released results from a Work Environment Survey that shows 35 percent of its employees were harassed or discriminated against in the 12 months preceding the anonymous survey. Interior Secretary Ryan Zinke and Deputy Secretary David Bernhardt, who have been on the forefront of instilling a culture change through swift personnel actions, transparency and a zero-tolerance policy, have issued a call for action plans from all bureau and office heads across the Department.

The Work Environment Survey was sent during the period of January 9 to March 5, 2017 to all DOI personnel employed as of December 10, 2016. CFI Group, a third-party contractor to the Department of the Interior, conducted the survey and developed the report that was released today. The survey results come two months after the National Park Service and Secretary Zinke announced the NPS-specific results from the same survey.

“From day one, I made it clear that I have zero tolerance for any type of workplace harassment, and I have directed leadership across the entire Department to move rapidly to improve accountability and transparency with regard to this absolutely intolerable behavior,” said Secretary Zinke. “All employees have the right to work in a safe and harassment-free environment. I’ve already fired a number of predators who other administrations were too afraid to remove or just turned a blind eye to. Under my leadership we don’t protect predators. When I say ‘zero tolerance’ I mean that these people will be held accountable for their abhorrent actions.”

The survey, which is the first of its scope done across the federal government, was designed to assess workplace conditions that Interior employees experience, including the prevalence and context of all forms of harassment. 28,203 employees responded to the survey, or a 44% response rate. Results showed that 20.5 percent of employees experienced age-related harassment, 16.5 percent experienced harassment because of their gender, 9.3 percent because of their race or ethnicity, and 8 percent experienced sexual harassment. Other forms of harassment that were surveyed were religion (7.1 percent), disability (6.1 percent) and sexual orientation (3.6 percent). 0.74 percent of respondents experienced a sexual assault.

CHANGING THE CULTURE

In a memo sent today to bureau and office heads, Deputy Secretary Bernhardt directed each to develop and submit a formal action plan within 45 days to address their specific survey results. Those plans, which will also be sent to the Assistant Secretary for Policy, Management and Budget, will include a schedule for accomplishing those actions and a description of how they will assess success.

“Intimidation, harassment, and discrimination are viruses within an operation, and have no place at Interior,” said Deputy Secretary Bernhardt. “The previous administration failed to aggressively address these problems and it shows. The culture across the Department will change. It’s up to all levels of management to ensure that our employees have a healthy work environment that empowers them to be productive and effective for the American people. And if managers are the problem, we will deal with of them.”

The Department has revised the performance standards for managers and supervisors to ensure that their future performance ratings will reflect their success or failure in holding employees accountable for harassing conduct. In addition, the new Department harassment policy which is now in draft form will implement a mandatory reporting process for reporting allegations of harassing conduct up the chain of command. This reporting structure will ensure that misconduct is not ignored and that appropriate disciplinary action is taken.

Since the Department received initial survey results, Interior has:

Issued the National Park Service Anti-Harassment Policy and its accompanying draft Reference Manual in October. NPS has been collecting employee comments on the Reference Manual and will finalize it soon. The new NPS anti-harassment policy has been strengthened by defining more broadly what is prohibited harassing conduct to ensure that employees can be held accountable for harassing conduct even if such behavior may not rise to the level of illegal harassment under EEO laws. This should serve as template for other bureaus and offices
Drafted a Department-wide harassing conduct policy that is similar to the NPS Anti-Harassment Policy; it defines more broadly prohibited harassing conduct to allow managers to hold employees accountable for conduct that may not rise to the level of illegal harassment. The Policy will have a reporting structure to ensure that management knows when allegations of harassing conduct are raised and that matters are investigated quickly.
Issued an Investigator Guide to Conducting Administrative Investigators. The guidance sets consistent high standards, ensuring that misconduct investigations, including those dealing with harassing conduct, are conducted in a thorough, impartial and fair manner, and any resulting disciplinary or other actions are defensible.
Trained close to 100 employee relations and employment law practitioners on conducting administrative investigations into allegations of misconduct.
Expanded the cadre of ombuds professionals available, with most Bureaus now having a dedicated ombuds resource in place.
Created/updated dedicated internal and external employee webpages with resources on harassment, discrimination and retaliation.

“These survey results don’t illustrate a new problem, but they will help us target where we must dedicate efforts and resources to fix a problem that has festered for years,” said Secretary Zinke. “We are now continuing the needed steps in creating plans across all of our bureaus and offices to ensure that every employee feels, not only safe on a daily basis, but also empowered to speak up should they feel harassed or discriminated against.”

Department employees who have experienced harassment or discrimination can find a wide variety of resources at DOI.gov/employees.

Transgender Professor Wins Landmark Decision in Discrimination Case: Awarded $1.165 million

“During that time, the human resources employee warned Dr. Tudor that Southeastern’s Vice President for Academic Affairs, Dr. Douglas McMillan, had inquired whether Dr. Tudor could be fired because her “transgender lifestyle” offended his religious beliefs.”

In November 2017, a federal jury award Dr. Rachel Tudor more than one million dollars in a Civil Rights Lawsuit filed by the United States Justice Department.

Background:

On March 30, 2015 The Justice Department announced it was filing a lawsuit alleging that Southeastern Oklahoma State University discriminated against transgender woman and the Regional University System of Oklahoma for violating Title VII of the Civil Rights Act of 1964 by discriminating against a transgender employee on the basis of her sex and retaliating against her when she complained about the discrimination.

Attorney General Eric Holder announced in December 2014 that the Department of Justice takes the position that Title VII’s prohibition against sex discrimination is best read to extend the statute’s protection to claims based on an individual’s gender identity, including transgender status.

According to the United States’ complaint, filed in federal district court in Oklahoma City today, Rachel Tudor began working for Southeastern as an Assistant Professor in 2004. At the time of her hire, Tudor presented as a man. In 2007, Tudor, consistent with her gender identity, began to present as a woman at work. Throughout her employment, Tudor performed her job well, and in 2009, she applied for a promotion to the tenured position of Associate Professor. Southeastern’s administration denied her application, overruling the recommendations of her department chair and other tenured faculty from her department. The United States’ complaint alleges that Southeastern discriminated against Tudor when it denied her application because of her gender identity, gender transition and non-conformance with gender stereotypes.

In 2010, Tudor filed complaints regarding the denial of her application for promotion and tenure. Shortly after it learned of her complaints, Southeastern refused to let Tudor re-apply for promotion and tenure despite Southeastern’s own policies permitting re-application. At the end of the 2010-11 academic year, Southeastern and RUSO terminated Tudor’s employment because she had not obtained tenure.

Tudor filed a charge of discrimination with the Oklahoma City Area Office of the U.S. Equal Employment Opportunity Commission, alleging that Southeastern’s decisions were unlawful. The EEOC investigated the charge and determined that there was reasonable cause to believe discrimination occurred. The EEOC’s attempts at conciliation were unsuccessful, and it referred the matter to the Department of Justice.

Read the full complaint filed by the United States here:

https://www.justice.gov/sites/default/files/opa/press-releases/attachments/2015/03/30/doj-eeoc_complaint.pdf

ADDITIONAL FACTS LISTED IN THE COMPLAINT:

Dr. Tudor’s Employment at Southeastern Oklahoma State University

In 2004, Dr. Tudor began working at Southeastern as a tenure track Assistant Professor in the Department of English, Humanities, and Languages (the “English Department”). At that time, she presented as a man and went by a traditionally male name.

Dr. Tudor was the first transgender professor ever to work at Southeastern.

In the summer of 2007, Dr. Tudor notified Southeastern that she planned to transition from male to female and begin to present as a woman at work during the 2007-08 academic year.

After she informed Southeastern about her transition, Dr. Tudor received a phone call from an employee of Southeastern’s human resources office to discuss various issues related to her gender transition. During that time, the human resources employee warned Dr. Tudor that Southeastern’s Vice President for Academic Affairs, Dr. Douglas McMillan, had inquired whether Dr. Tudor could be fired because her “transgender lifestyle” offended his religious beliefs. The human resources employee told Dr. Tudor that Vice President McMillan had been told that Southeastern could not fire her because she was transgender.

During the 2007-08 academic year, Dr. Tudor began to present as a woman at work by, among other things, wearing women’s clothing, styling her hair in a feminine manner, and going by the traditionally female name Rachel.

After Dr. Tudor began presenting as a woman, Jane McMillan, the director of Southeastern’s Counseling Center, told her that she should take safety precautions because some people were openly hostile towards transgender people. She also told Dr. Tudor that Vice President McMillan (who is her brother) considered transgender people to be a “grave offense to his [religious] sensibilities.”

Update: Refusal to Make a Cake for a Gay Wedding: Discrimination or First Amendment Right?

Photo courtesy Masterpiece Cakeshop, Facebook.

UPDATE: Excellent summary of today’s events: 12.5.17

Recommended Citation: Amy Howe, Argument analysis: Conservative majority leaning toward ruling for Colorado baker (UPDATED), SCOTUSblog (Dec. 5, 2017, 12:18 PM), http://www.scotusblog.com/2017/12/argument-analysis-conservative-majority-leaning-toward-ruling-colorado-baker/

United States Supreme Court Docket, December 5, 2017

16-111 MASTERPIECE CAKESHOP V. CO CIVIL RIGHTS COMMISSION

QUESTION PRESENTED:
Jack Phillips is a cake artist. The Colorado Civil Rights Commission ruled that he engaged in sexual orientation discrimination under the Colorado Anti- Discrimination Act (“CADA”) when he declined to design and create a custom cake honoring a same-sex marriage because doing so conflicts with his sincerely held religious beliefs.
The Colorado Court of Appeals found no violation of the Free Speech or Free Exercise Clauses because it deemed Phillips’ speech to be mere conduct compelled by a neutral and generally applicable law. It reached this conclusion despite the artistry of Phillips’ cakes and the
Commission’s exemption of other cake artists who declined to create custom cakes based on their message. This analysis (1) flouts this Court’s controlling precedent, (2) conflicts with Ninth and Eleventh Circuit decisions regarding the free speech protection of art, (3) deepens an existing conflict between the Second, Third, Sixth, and Eleventh Circuits as to the proper test for identifying expressive conduct, and (4) conflicts with free exercise rulings by the Third,
Sixth, and Tenth Circuits.

The question presented is: Whether applying Colorado’s public accommodations law to compel Phillips to create expression that violates his sincerely held religious beliefs about marriage violates the Free Speech or Free Exercise Clauses of the First Amendment.

————–

Courtesy ACLU:

On December 5, 2017, the United States Supreme Court will hear oral arguments on whether a business open to the public has a constitutional right to discriminate.

David Mullins and Charlie Craig visited Masterpiece Cakeshop in July 2012, with Charlie’s mother, to order a cake for their upcoming wedding reception. Dave and Charlie planned to marry in Massachusetts and then celebrate with family and friends back home in Colorado. But bakery owner Jack Phillips informed them that the bakery wouldn’t sell wedding cakes to same-sex couples.

Longstanding Colorado state law prohibits public accommodations, including businesses open to the public such as Masterpiece Cakeshop, from refusing service based on characteristics like race, religion, orsexual orientation. Dave and Charlie filed complaintswith the Colorado Civil Rights Division contendingthat the bakery violated

Colorado’s Anti-Discrimination Act. Following an investigation and hearings, the Colorado Civil Rights Commission determined that the bakery illegally discriminated against Dave and Charlie when it refused them service.

On August 13, 2015, the Colorado Court of Appeals unanimously affirmed the Commission’s order, finding that the bakery discriminated because of sexual orientation in violation of state law. The court also concluded that application of Colorado’s Anti-Discrimination Act did not infringe the bakery’s freedom of speech or free exercise of religion. The Colorado Supreme Court denied review, and the United States Supreme Court granted certiorari on June 26, 2017.

Status: After victories for equality at every stage of the case, the United States Supreme Court will hear oral argument on December 5, 2017. In advance of oral argument, more than 40 friend-of-the-court briefs were filed in support of Dave and Charlie.

Google & YouTube Sued for Discrimination: PragerU Takes Legal Action

LOS ANGELES — Prager University (PragerU) has filed a lawsuit in the United States District Court for the Northern District of California to stop Google and YouTube from unlawfully censoring its educational videos and discriminating against its right to freedom of speech.

The lawsuit cites more than 50 PragerU videos which have either been “restricted” or “demonetized” by Google/YouTube. The PragerU videos range on various subjects presenting a conservative point of view, and include a video by noted Harvard Law professor Alan Dershowitz on the founding of Israel. PragerU previously compiled a complete list of their restricted videos here, which includes: “Why America Must Lead,” “The Ten Commandments: Do Not Murder,” “Why Did America Fight the Korean War,” and “The World’s Most Persecuted Minority: Christians.”

In correspondence cited in the filing, Google/YouTube made it clear that the censorship of certain videos was because they were deemed “inappropriate” for younger audiences.

“Watch any one of our videos and you’ll immediately realize that Google/YouTube censorship is entirely ideologically driven. For the record, our videos are presented by some of the finest minds in the Western world, including four Pulitzer Prize winners, former prime ministers, and professors from the most prestigious universities in America,” stated PragerU founder Dennis Prager.

Prager added, “They are engaging in an arbitrary and capricious use of their ‘restricted mode’ and ‘demonetization’ to restrict non-left political thought. Their censorship is profoundly damaging because Google and YouTube own and control the largest forum for public participation in video-based speech in not only California, but the United States, and the world.”

The total number of people who currently use YouTube exceeds 1.3 billion people. Google and YouTube advertise YouTube to the public as a forum intended to defend and protect free speech where members of the general public may express and exchange their ideas. They have represented that their platforms and services are intended to effectuate the exercise of free speech among the public. According to Google and YouTube: “voices matter.” YouTube states that it is “committed to fostering a community where everyone’s voice can be heard.”

“However,” said Eric George of Browne George Ross, the firm representing PragerU, “Google and YouTube use restricted mode filtering not to protect younger or sensitive viewers from ‘inappropriate’ video content, but as a political gag mechanism to silence PragerU. Google and YouTube do this not because they have identified video content that violates their guidelines or is otherwise inappropriate for younger viewers, but because PragerU is a conservative nonprofit organization that is associated with and espouses the views of leading conservative speakers and scholars.”

“This is speech discrimination plain and simple, censorship based entirely on unspecified ideological objection to the message or on the perceived identity and political viewpoint of the speaker,” said former California Governor Pete Wilson of Browne George Ross. “Google and YouTube’s use of restricted mode filtering to silence PragerU violates its fundamental First Amendment rights under both the California and United States Constitutions. It constitutes unlawful discrimination under California law, is a misleading and unfair business practice, and breaches the warranty of good faith and fair dealing implied in Google and YouTube’s own Terms of Use and ‘Community Guidelines.’”

“There is absolutely nothing ‘inappropriate’ about the content of the PragerU videos censored by Google and YouTube; the videos do not contain any profanity, nudity or otherwise inappropriate ‘mature’ content and they fully comply with the letter of YouTube’s Terms of Use and Community Guidelines,” said Marissa Streit, PragerU’s chief executive officer who has engaged in a year-long-effort to try and persuade Google to stop censoring PragerU content. Streit continues, “It’s clear that someone doesn’t like what we teach and so they intend on stopping us from teaching it. Can you imagine what the world would look like if Google is allowed to continue to arbitrarily censor ideas they simply don’t agree with?”

“This is not a left/right issue. It is a free speech issue, which is why prominent liberals, such as Harvard law professor Alan Dershowitz, are supporting our lawsuit,” Prager concluded.

The lawsuit filed in the Northern District of California is available here.

###

Advisory Legal Council:
Former Governor Pete Wilson’s Law Firm, Browne, George and Ross;
Eric George;
Alan Dershowitz;
Barak Lurie, Kelly Shackelford, Mat Staver;
and additional prominent attorneys.

PragerU, founded by Dennis Prager in 2011, is a not-for-profit organization that helps millions understand the values that shaped America and provides millions of Americans and people around the world with the intellectual ammunition they need to advocate for limited government, individual responsibility and economic freedom. In 2016 alone, PragerU’s videos received over 250 million views, a figure that will eclipse 350 million in 2017. PragerU is a resource for all who value liberty. It is a threat to all those who do not.

Website | www.PragerU.com Twitter | @PragerU